Lu v Huang - [2016] NZHC 2311

NOTE: PURSUANT TO S 35A OF THE PROPERTY (RELATIONSHIPS) ACT 1976, ANY REPORT OF THIS PROCEEDING MUST COMPLY WITH SS 11B TO 11D OF THE FAMILY COURTS ACT 1980. FOR FURTHER INFORMATION, PLEASE SEE
THE-FAMILY-COURT/LEGISLATION/RESTRICTION-ON-PUBLISHING- JUDGMENTS.

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

CIV-2014-409-000822 [2016] NZHC 2311

BETWEEN
LU

Appellant

AND

HUANG
First Respondent

AND

FEN

Second Respondent

Hearing: 9, 10, 11, 13 & 19 May 2016

Appearances:

S J Fairclough for the Appellant
First Respondent in person
No appearance for the Second Respondent
A Watkins as Counsel assisting the Court

Judgment:

28 September 2016

JUDGMENT OF NATION J

[1] A couple marry in China. A few years later they buy a home jointly in New Zealand with a mortgage. Some years later the couple separate. Most of the proceeds of sale from their home are used to buy another residential property in the name of the husband’s first wife. The underlying issue in this case is whether the first wife was the true owner of the first home and thus entitled to the proceeds of
sale used to purchase the second property.

LU v HUANG & FEN [2016] NZHC 2311 [28 September 2016]

Background

[2] The first respondent (Ms Huang) and second respondent (Mr Fen) were married in China in December 1997. They moved to New Zealand in 2001 and jointly purchased a home there (the Auckland property). In 2005 they separated. In November 2005 they sold the Auckland property. (By ss 11B to 11D Family Courts Act 1980 and s 35A of the Property (Relationships) Act 1976, all details that might lead to the identification of the parties to these proceedings are suppressed. This judgment has been anonymised. The names used for the parties and all witnesses are fictitious.)

[3] In August 2007, Ms Huang began relationship property proceedings in the

Family Court in Christchurch.

[4] Neither Ms Huang nor Mr Fen was legally represented in those proceedings. The Court appointed Mr O’Donnell as counsel to assist the Court.

[5] Mr Fen told the Family Court that the Auckland property had been bought with funds advanced from families in China. He told the Family Court the proceeds of sale from the Auckland property were used to repay those families and business debts he had in China. Those proceeds were, in fact, used to buy a property at […], Christchurch (the Christchurch property) in the name of Mr Fen’s former wife, the appellant (Ms Lu).

[6] Ms Huang said the money from China used to pay for their Auckland property was theirs and Mr Fen was not telling the truth.

Proceedings in the Family Court

[7] In an initial judgment of the Family Court on 25 January 2013 (the first judgment), the Family Court Judge found that Mr Fen’s evidence as to where the proceeds from the sale of the Auckland property had gone was a fabrication.1 Those proceeds were relationship property and had been used to purchase the Christchurch
property in the name of Ms Lu.…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Lu v Huang

Details

AGLC: Lu v Huang [2016] NZHC 2311
Case: [2016] NZHC 2311
Decision Date: 28 September 2016

CaseChat Overview and Summary

Lu v Huang [2016] NZHC 2311 concerned the ownership of a Christchurch property purchased by the husband's former wife, Lu, with funds derived from the sale of a jointly owned Auckland property. The former wife of the husband, Huang, sought to claim an interest in the Christchurch property on the basis that it was purchased with funds derived from the sale of the Auckland property, which was their family home. The husband, Fen, and Lu had engaged in a scheme to defeat Huang's claim by purchasing the Christchurch property in Lu's name. The Court found that Lu had not acted in good faith or provided valuable consideration in purchasing the Christchurch property and ordered that it be sold. Huang was entitled to half the proceeds of sale. The Court rejected Lu's appeal against the Family Court's orders.

Orders